Weis and Becker, Circuit Judges, and Oliver, District Judge.*fn*
In their complaint, plaintiffs attacked the terms of consent decrees to which they were not parties. The district court dismissed the complaint because plaintiffs had not timely intervened in the earlier lawsuit. We will affirm.
Plaintiffs brought suit against officers of the EPA, the commissioner of the state environmental agency, and six New Jersey sewage authorities and their officials. The complaint asked for injunctive relief requiring defendants to phase out the authorities' practice of dumping sewage sludge into the ocean, and also sought modification of certain consent judgments previously entered by the district court. The court dismissed the case, concluding that the two counts that have been appealed were improper collateral attacks on existing judgments.*fn1
The plaintiffs' complaint recites their objections to the dumping of contaminated sewage sludge in an area of the Atlantic Ocean known as the New York Bight, located 12 miles off the New York New Jersey coastline. Municipal sewage authorities in those two states have carried on disposal operations in the area since 1924. Plaintiffs contend this practice presents serious risks to human health and the coastal environment and is unnecessary because non-ocean alternatives are available.
Count I alleges that the dumping is prohibited by the London Convention, an international treaty to which the United States is a signatory. 26 U.S.T. 2403, T.I.A.S. No. 8165. Count II asserts violations of the Marine Protectionn, Research, and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1445 (1982).
The case at hand is closely related to two other suits that addressed sludge disposal in the Bight. The first was filed in the Southern District of New York by the City of New York which challenged the EPA's refusal to renew the city's dumping permit beyond December 31, 1981.City of New York v. EPA, 543 F. Supp. 1084 (S.D.N.Y. 1981). While that suit was pending, five New Jersey authorities brought similar suits against the EPA in the District Court of New Jersey.*fn2 The record does not indicate that the New Jersey cases were formally consolidated. They were all assigned to Judge Sarokin of the District of New Jersey and all were terminated by identical consent judgments.
The New York action was terminated first. The district court concluded that the EPA had misconstrued the Marine Protection Act, and directed the agency to revise its regulations as well as reconsider New York's permit application. City of New York v. EPA, 543 F. Supp. 1084 (S.D.N.Y. 1981). In the interim, the city was permitted to continue ocean dumping. The New York court filed an initial opinion in April 1981. After allowing the parties to submit suggested amendments, it issued a revised opinion in August 1981. The judgment was entered in November 1981, and the government did not appeal.
Although aware of the New York case, plaintiff National Wildlife Association did not intervene or participate, confining its activity to "behind the scenes" coordination with the EPA. National Wildlife, together with plaintiff New Jersey State Federation of Sportsmen's Clubs, filed an amicus curiae brief in the New Jersey action in September 1981 and a motion to intervene in April 1982.
In the spring of 1982, the parties to the New Jersey action were engaged in negotiations and eventually agreed to consent judgment that tracked the provisions of the order entered in the New York case. The agreement stated that "pursuant to the judgment in the case of City of New York v. EPA . . ., EPA intends to revise its ocean dumping regulations." The sewage authorities were to resubmit applications for permits and would be allowed to continue dumping in the interim. As had the order in the New York case, the decrees returned the matter to the administrative process for reconsideration under revised regulations.
Motions for the entry of New Jersey consent judgments were presented to Judge Sarokin, and he signed them on May 13, 1982. On the same day, Judge Sarokin denied the plaintiffs' motion to intervene as untimely. Plaintiffs did not appeal the denial of their motion for intervention.
Seven months later, on December 22, 1982, plaintiffs filed the present suit in the District of New Jersey, seeking modification of the consent decrees. The case was assigned to Chief Judge Fisher.
In ruling on defendants' motions to dismiss, Chief Judge Fisher pointed out that plaintiffs had failed to appeal the denial of intervention. He also observed that they would have an opportunity to participate in the administrative rule-making process then underway in compliance with the New York decision and New Jersey decrees. Furthermore, he commented that if regulations adverse to their position were adopted, plaintiffs could file an independent suit. Counts I and II were therefore dismissed as impermissible collateral attacks.
On appeal, plaintiffs contend that because they were denied the right to intervene, they are not precluded from attacking the non-adjudicated, non-adversarial New Jersey consent decrees. They argue that they were under no obligation to intervene, and even if they were, they took action within a reasonable time after learning that the EPA would not appeal the New York judgment. Finally, plaintiffs assert that they relied on comments made from the bench by Judge Sarokin when he denied their intervention motion. At that time, he suggested that plaintiffs were not barred from bringing an independent action on the applicability of the London Convention.
Defendants assert that dismissal was proper on a collateral attack rationale. As additional reasons for affirmance, they urge that the New York district court properly construed the Marine Protection Act and that plaintiffs do not have a private right of action under the London Convention.
Both the legislative history of the Marine Protection Act and the EPA's checkered history of enforcement of the statute are detailed in the opinion of the Southern District of New York. City of New York, 543 F. Supp. 1084. A discussion of the London Convention and its relationship to the Act may be found in National Wildlife Federation v. Costle, 203 U.S. App. D.C. 84, 629 F.2d 118 (D.C.Cir.1980).In view of the extensive background material contained in these two opinions, it is not necessary to recite more than a summary statement of the legal issues.
The Marine Protection Act grants the EPA the authority to issue permits for ocean dumping when it "determines that such dumping will not unreasonably degrade . . . the marine environment." 33 U.S.C. § 1412(a). In 1977, the EPA adopted revised regulations listing certain materials that, if present in the sludge, would give rise to a presumption of unreasonable degradation of the marine environment. In those circumstances, permits would be issued only on an interim basis and correction or complete phase out of dumping operations was required by December ...